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Scalia Slips, Thomas Follows

A bad error by a Supreme

This is Dark Cloud on Wednesday, April 30, 2014.

As the Baby Boomers inch closer to the ditch, to being worm food, to being vaporized and forgotten, there are a lot of expensive old people sensitive about being thought no longer mentally acute. I'm one of them, and we're not. The laws of nature were not suspended on our behalf, and the long mental hallways are darker now, in memory and in mechanized ability to think well. Not me personally, of course. Despite my chronological age, I've only entered Late Youth, and can remember as well as ever, even to the days long ago on an uncle's farm cleaning the toes of the horses before a ride.

So, not me, but Justice Scalia of the Supreme Court ought to be given his final bowl of milk toast on the public dime and a Timex watch and edged out. Soon. Yesterday, his dissent in an opinion, in which he was joined only by his tongue bather Justice Thomas, was in a case about the Environmental Protection Agency's authority to regulate coal pollution across state lines. Scalia's dissent on Tuesday said that the majority's decision conflicted with a unanimous 2001 ruling by the court, which Scalia says nixed EPA efforts to consider costs when setting regulations. There are two problems with that position.

First, the EPA's stance was 180 degrees opposite that which Scalia claimed. The EPA , obviously, would be defending its refusal to consider mere cost when a huge health issue was poisoning the air. Scalia somehow confused the trucking industry's opinion with the EPA's. Think about how often the trucking industry and the EPA are in agreement, and how difficult to confuse their positions. Scalia just did. And, apparently so did his highly touted staffers. Oh, and so did Justice Thomas and his staffers. It was a 9-0 ruling that sided with the EPA thirteen years back. How could this be confusing to anyone? But it gets worse.

The unanimous decision was written by Scalia himself. So, to summarize:

Scalia forgot an opinion he himself had written. So did his staff of law clerks. He implausibly reversed the positions of the two sides, which is near impossible to believe or imagine. Justice Thomas and his clerks didn't notice it either.

But others have noticed. And as of this morning, April 30, the Supreme Court has corrected Scalia's opinion. No word from Scalia or Thomas on what not just liberal observers are calling an "embarrassing .....cringe worthy blunder." Talking Points Memo noted that Doug Kendall, president of the admittedly liberal advocacy group the Constitutional Accountability Center, said it is an error not recalled made by an actual Justice of the US Supreme Court. "...it's not just a stray passage -- it's the basis for an entire section of the dissent," says Kendall. "It is very unusual to see a passage that so clearly misstates the fundamental facts of a prior ruling, especially one written by the justice himself."

Scalia, a morbidly obese 78 year old man of conservative Catholic inclinations, has been famous in the past for scathing remarks about the work of his peers. I'm certain I'm not the only one who has noticed his inclination to accord his own opinions more closely to those popular in the secretive Opus Dei, which he supports, and all reactionary Catholic positions or at least conservative Republican opinions. In his dissent this week, Scalia accused the six justices who formed the majority of writing a decision that “feeds the uncontrolled growth of the administrative state at the expense of government by the people,” and of approving an “undemocratic revision of the Clean Air Act.” Along with those remarks, he equates the EPA - which by the way is a creation by executive order of that pot head hippie Richard Nixon - with quotes from Karl Marx.

If nothing else, the term "acid rain" has essentially vanished from the news and public debate, and it's not being hidden. The 2010 goals set by the EPA in reducing power plant emissions that largely caused it were met in 2007, and the costs that were hysterically predicted by the coal, power, and trucking industries were 75% too high. No doubt Karl Marx, who lived in England during the early industrial revolution, would appreciate and approve anything that made the air more breathable for everyone, especially when it could be done efficiently and fairly.

But that doesn't make it a communist victory or virtue. And you get the feeling that the raw emotional reaction of Antonin Scalia - now an olde man yelling at teenagers and squirrels and any patriarchal image that threatens his religious choice for preeminence, are due to associations he cannot stomach, and not facts. Even facts he once acknowledged himself.